Plans to restrict environmental legal challenges approved

‘I would say the one thing that unites all of us is an absolute love of local environment’

The Government and developers are concerned it is now too cheap for locals to take court challenges to developments. Photograph: Getty Images

The Nore river pearl mussel is a fascinating creature; it’s about the size of your hand, lives for about 100 years, and is only found on one stretch of the Co Laois river.

Nearly all of them died out last century, and, according to Laois resident Paula Byrne, their future remains uncertain. Now she fears a wind farm development near the river will tip the mussel’s delicate ecosystem out of balance, wiping it out for good.

In response Byrne and other locals have formed their own group to fight the development, first before the county council and An Bord Pleanála, then before the High Court and now in the European Court of Justice.

She says the process has involved hours “spent around kitchen tables poring over highly complex planning documents”. And don’t even mention the nearly €70,000 they paid for expert witnesses to help them make their case.

Last week the Government approved plans to restrict the ability of such groups to bring court challenges to major developments. The proposed measures include limiting the time challengers have to make applications and requiring that groups have been in existence for over three years before they can object.

Such measures would disqualify a huge proportion of the environmental groups currently in existence around the country.

Major projects

Ministers, still smarting from the embarrassment of Apple threatening to abandon plans for a €850 million data centre in Athenry, Co Galway, because of court challenges from environmental groups, are eager to discourage citizens from making what many see as frivolous planning objections which can delay major projects for years.

The Government has also been informed by developers that some groups are challenging projects purely in the hope of a pay-off from the developer. Byrne is insulted by the idea. “It’s a fundamental attack on democracy. And it’s quite likely Ireland could find itself being prosecuted in Europe over it.

Because most law firms take such cases on a no-win, no-fee basis, it often costs an applicant nothing to lodge a challenge.

“I know there would be charges of nimbyism against the likes of us. But I would say the one thing that unites all of us is an absolute love of the local environment.”

Byrne’s view appears to be supported by most planning lawyers and experts. Those who spoke to The Irish Times were universally of the view that bad faith court challenges were not a major problem.

Even Chris Clarke, the secretary of An Bord Pleanála, which is the defendant in most of these cases, agreed it was not a major issue and that most challengers genuinely care about the environment.

Court challenges

The Government and developers are also concerned it is now too cheap for locals to take court challenges to developments.

The Aarhus Convention mandates that European citizens must be allowed timely and cost-effective access to justice on environmental issues. In practical terms this means that since 2011 environmental groups no longer have to pay the costs of the opposing side if they lose in court.

And because most law firms take such cases on a no-win, no-fee basis, it often costs an applicant nothing to lodge a challenge.

In 2012, after the rule change, judicial reviews against An Bord Pleanála nearly doubled and have remained high since. However, it’s difficult to determine if this is just because of the rule change or if it has more to do with the resurgent construction industry.

The challenge is balancing the rights of developers and the Government to build infrastructure with the rights of citizens who are genuinely concerned about the environment, according to planning lecturer Alison Hough.